Tuesday, 2 August 2011

Legal Update II: the Headleys

A case before theU.S.Supreme Court in October could play a key role in lawsuits filed against Scientology by former members of its Sea Organization.

In 2005 Cheryl Perich, a teacher at a small elementary school in Redford, Michigan, was preparing to return to work after six months on medical leave. But her employers said they did not think she was ready.

She tried to report for work anyway and finally threatened legal action to get her post back. They fired her, so she went to court.

In any state school, it would have been an open-and-shut case given the laws forbidding discrimination on grounds of disability, says her lawyer.

But as this was a religious school – the Hosanna-TaborEvangelicalLutheranChurch and School – they had a fight on their hands.

For the school’s officials said that by going to law, Perich had broken a tenet of Lutheran faith that was part of school policy: that employees resolve disputes through the church’s internal church procedures.

And in October, it will go before the Supreme Court for argument.

Here is how the Scotus (Supreme Court) blog sums up the core issue:

Courts have generally believed that federal employment discrimination statutes do not apply to church employees performing religious functions. The question is whether this “ministerial exception” applies not simply to religious leaders, but also to teachers at a religious elementary school.[1]

Sound familiar? It should.

In the complaints he filed for Marc and Claire Headley, lawyer Barry Van Sickle has attacked the notion that all members of Scientology’s Sea Organization perform religious functions.

In Claire Headley’s complaint, he argued: “She was not a minister and Golden Era [her Scientology employer] was not a church.” Her duties were mainly “clerical, commercial or secular” in nature, he wrote.

In Marc Headley’s complaint, he made the same point: “Plaintiff’s duties were secular and commercial in nature. Golden Era Productions is a business enterprise.” Marc Headley had worked mainly on film and promotional material that were sold commercially.

He correctly anticipated then, that Scientology would base its defence on the principle of ministerial exception.

Ministerial exception is derived from the First Amendment of the U.S. Constitution guaranteeing religious freedom.

In the past, the courts have interpreted this as granting an exemption for religious organisations from the usual requirements of employment law – everything from minimum wage to sex discrimination.

But if the U.S. Supreme Court decides the church school stretched its constitutionally guaranteed prerogatives too far, it would be a major blow to Scientology’s defence against lawsuits brought by ex-Sea Org members.

Indeed, if the court finds for Perich and the Equal Employment Opportunity Commission, then Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC the shockwaves could reach much further.[2]

Why the cases fell

Here’s a quick recap for those of you who tuned in late (for more detail, see the relevant postings elsewhere on this site).[3]

The Headleys filed their cases in the California courts in 2009. Both were dismissed in summary judgments issued by Judge Dale S. Fischer on August 5, 2010.

In each ruling, Judge Fischer ruled, in effect, that the Headleys knew what they were signing up for when they joined the Sea Org.

In Marc Headley’s lawsuit, he alleged that he was forced to work long hours below the minimum wage at Scientology’s California centre, known as the Int. Base.

He described seeing colleagues assaulted and detailed the physical abuse that he himself suffered.

And he also alleged that the Sea Org illegally used child labour, a claim that has appeared in other lawsuits filed by former members.[4]

But Judge Fischer accepted Scientology’s argument that employment conditions and practices in the Sea Org were covered by ministerial exception.

And she invoked the same principle when she dismissed Claire Headley’s case.[5]

Headley had argued her claim was valid under human trafficking laws because:

But having listed the points advanced by Headley, the judge took the view that the principle of ministerial exception trumped all the issues raised.

“…Defendants here represent that the challenged conduct was doctrinally motivated,” she noted in her ruling against Claire Headley.

“…Therefore, inquiry into these allegations would entangle the Court in the religious doctrine of Scientology and the doctrinally-motivated practices of the Sea Org.”[7]

In both rulings, she rejected as “circular” the Headleys’ arguments that Scientology doctrine did not sanction such abuses.

“Determining whether Scientology’s practices of routing out, censorship, or heavy manual labor as a form of discipline, for example, constitute involuntary servitude within the meaning of the TVPA [Trafficking Victims Protection Act] is precisely the type of entanglement that the Religion Clauses prohibit.”[8]

Objections

Lawyer and blogger Scott Pilutik, in his analysis of the two judgments, has argued that it is the judge’s argument that is circular.[9]

In his view, Judge Fischer misapplied the ministerial exception test on which she based her judgment (based on a principle established in another case).

Judge Fischer accepted that Claire Headley had been recruited based on religious grounds, one of the test criteria. Nobody forced her to join, she noted: she went in with her eyes open.

But this begs important questions, Pilutik argues.

For one thing, he wrote, “…the willingness to endure substandard treatment at the hands of your employer” does not constitute a religious criterion: “…indeed, it is what labor law intends to remedy.”

And, he added, as former Sea Org members will confirm, recruits are not chosen on any religious criteria; the sole criterion is a willingness to join.

“Additionally, the court ignores that children can become Sea Org members.

“Just how strenuous could Scientology’s religious hiring criteria be if children can be Sea Org members? And are they then not therefore protected by labor law?”[10]

You don’t have to be a legal expert to see that he might just have a point here.

For Judge Fischer’s rulings appear to beg the question of just how far ministerial exception can be allowed to stretch.

Critics of ministerial exception have already argued that it was never intended to give churches cover for abusive practices.

The way Judge Fischer sees it, it looks like a get-out-of-jail-free card.

Judge Fischer, in her ruling on Marc Headley’s claim, said that by his own admission, he knew what he was letting himself in for, adding: “He also did not submit any admissible evidence that he joined the Sea Org against his will.”

But Headley joined the Sea Org at age 16, which under California laws, means he was a still a minor – and that surely raises issues of informed consent.

And even leaving aside the issue of physical abuse – which according to Judge Fischer’s ruling Scientology does not dispute took place – it can at least be argued that he was not fully informed as to the conditions he would face when he signed up.[11]

To take just one example, Headley alleges his recruiters told him he would be paid minimum wage.[12]

In Claire Headley’s case, the ruling appears to treat the issue of informed consent, of deceptive recruitment, at best superficially.

“She understood what the Sea Org lifestyle entailed because her mother, uncle, and cousins had all been Sea Org members,” the judge notes.[13]

Headley, “…does not dispute that prior to joining the Sea Org she was aware of the challenges such membership would entail,” she adds later.

“She also has not put forward any admissible evidence that she joined the Sea Org against her will.”[14]

But the complaint makes clear that she joined the Sea org, aged 16, so under California law she too was a minor.

And Headley also contends that her recruiters did not honour their promise that she would able to complete her education.

Ministerial exception

It is worth looking again at the recent California appeal court ruling reinstating Laura DeCrescenzo’s case against Scientology for what she endured in the Sea Org.

On June 24, the court decided that the issues she had raised, of coercion, deception and undue influence over vulnerable people (minors), at least deserved to be tested at trial.

The same issues do not appear to have moved Judge Fischer.

She appears to have treated the principle of ministerial exception as a kind of trump card over everything from labour law violations to human trafficking.

But there appears to be growing dissatisfaction among at least some specialists in this area over this kind of sweeping interpretation.

Critics argue that ministerial exception is not so much protecting religious freedom as running roughshod over other basic rights.

TheHosanna-Tabor Evangelical Lutheran Church and School v. EEOC is set for argument at the Supreme Court in October, with a decision expected next year.

It is early days yet, but itcould end up being the case that forces churches to pull in their horns.

---

[1]From the Scotusblog page on the case (Scotus: Supreme Court of the United States).

[2]For a good plain-English write-up of the Perich case, see “Michigan case puts church v. state before the U.S. Supreme Court” by Sandra Svoboda, which was the cover story of The Metro Times’ July 13 edition. Scotusblog gives you chapter and verse on the legal elements: the number of amicus briefs attached is presumably an indication of just how much is at stake here for any number of religious organisations. Scott Pilutik, who pointed out the significance of the Perich case long before I had even heard of it, has written this legal analysis at his site.

[3]For my initial write up of Marc Headley’s lawsuit, see here. He described his experiences in more detail at a conference in Hamburg, Germany in 2008, which I covered here. For coverage of the speech he gave at a Los Angeles press conference in 2010 together with other former Sea Org members to publicise abuses inside this part of Scientology’s operations, see here. And he has written up his story in a book, BlownforGood, available here. You can find my initial write-up of Claire Headley’s case here.

[4]This forms part of Laura DeCrescenzo’s lawsuit; and one of two lawsuits filed in March 2011, by Daniel Montalvo. The November 2009 lawsuit filed by John Lindstein contains similar, striking allegations: but it was settled in December 2010.

[9]Pilutik set out his argument in a posting to the Why We Protest message board discussing the ruling against Claire Headley. His analysis is based on an earlier ruling by Judge Fischer against Claire Headley than the final judgment, but since final ruling is based on the same arguments, his objections stand.

[10]Scott Pilutik’s legal blog is back up after a brush with hackers: it has provided legal analysis not just of Laura DeCrescenzo’s case but those of the Headleys.

We know too from Lawrence Wright’s Februrary 2011 New Yorker article on defector Paul Haggis that the Federal Bureau of Investigation has been investigating allegations of human trafficking against Scientology since at least December 2009. (According to sources I spoke to in early 2008, they were originally working it as a fraud investigation.) Admittedly it may come to nothing: but the fact that they are even looking suggests that the Bureau’s lawyers do not see the principle of ministerial exception as the final word in this area.

[11] “Defendant does not dispute that the record includes evidence that physical abuse occurred at its premises,” says Judge Fisher in her summary judgment of Marc Headley’s case.

Since the St Petersburg Times took this issue mainstream in its 2009-2010 investigation “The Truth Rundown”, the official Scientology line has been to blame the violence on former senior Sea Org executives such as Mike Rinder and Marty Rathbun. Although Rathbun has admitted that he was among the abusers, he was also among several former Sea Org members working at the California base who subsequently denounced the abusive regime at the base – and the physical assaults carried out by the movement’s current leader, David Miscavige. See The Case Against Miscavige and A History of Violence elsewhere on this site.

[12]“When initially recruited into employment with the Scientology enterprise, Plaintiff was told he would be paid minimum wage.” From page 13 of Marc Headley’s second amended complaint. Several former Sea Org members have complained that the picture that recruiters gave them of life in the Sea Org bore no relation to what they subsequently experienced. See for example, the first two parts of Maureen Bolstad’s account of her recruitment, The Early Years and Life at Flag, elsewhere on this website.

Thanks for the feedback Mary: have checked the links on both updates and they seem to be okay, though I never did work out how to get the numbered in the text to link directly to their corresponding notes at the bottom, which is perhaps what you meant. Jonny

Am baffled how the courts are so easily manipulated by the lawyers of this so called "church". Are judges being blackmailed or coerced in some way... or is it just a legal game of words and interpretations. Ordinary citizens are shocked, frightened and appalled at what they get away with.

There seems to be no "Single Reference" of material that would fully inform unsuspecting peoples of the True nature and history of Hubbard's Horrors.

With the advent of 'The Cloud' and E-books, there may be an opportunity to link all the disparate source material thru a single point or reference... something simple to read or view and absorb...

Clearly, even top government officials and Presidents have been mis-lead as to the true nature and intention of these mind-controlled peoples...

Even after Hubbard's death... he exerts frightening mind-control over peoples who are not aware.. that they have been 'absorbed' or "Soul Cracked".

Are they winning or losing? How many governments have they infiltrated?

May I add here that from what I understand of contract law, agreements that are contrary to public policy(i.e., the Constitution and applicable federal and state law)are unenforceable; in other words, you cannot sign away your constitutional rights by entering an agreement. And whatever happened to the principle that a person entering an enforceable agreement has to have capacity?A lot of problems with this order.

Goldenboy, shortly after I posted this piece last year, Scott Pilutik published a more detailed analysis than the one I cited above, at his own blog, Reality based community. You might find his perspective as an attorney interesting: http://realitybasedcommunity.net/archive/2011/08/will-hosanna-tabor-v-eeoc-give-hope-to-the-headleys.php

About the Author

Jonny Jacobsen is the author of the Infinite Complacency website tracking violence and abuse in Scientology and also contributes to Tony Ortega's Underground Bunker on the same subject.. He trained as a journalist in the late 1980s with the Birmingham Post and Mail group and spent several years freelancing in Scotland before moving to Paris in 1994, where he is still based. His first investigative piece on Scientology was in 1996 as a reporter/producer with Radio France International. You can reach him at jonnymcj(AT)hotmail.com.

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A Piece of Blue Sky

Click on the image to order the new edition of Jon Atack's definitive history of Hubbard-era Scientology. To learn more about the battle to get the original version published read "Atack Unchained" below.

For the Record

I approached Scientology several times to get their response to the allegations set out in the first section, "Violence and abuse in the Sea Org" regarding David Miscavige's violence and the abuse at the International Base: nothing so far.

Unless otherwise specified, all quotes come from interviews with the author.

Don't get me started: If you want to know why I write about Scientology, read this account published in Scotland's Sunday Herald on November 8, 2009. Since they never properly formatted it on their website I've also posted it here, in a slightly more readable form.

The Paris Trial: In answer to a question from a reader: these are my first-hand reports from the court, not a round-up of the French press coverage.